Estabrook v. United States [General Servs. Administration]

• Decision Date: 13 December 2018
• Docket Number: Civil Action No. 16-cv-11772-ADB
• Parties: PATRICIA ESTABROOK, Plaintiff, v. UNITED STATES OF AMERICA [GENERAL SERVICES ADMINISTRATION] Defendant.
• Court: U.S. District Court — District of Massachusetts

PATRICIA ESTABROOK, Plaintiff, v. UNITED STATES OF AMERICA[GENERAL SERVICES ADMINISTRATION]Defendant.

Civil Action No. 16-cv-11772-ADB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

December 13, 2018

MEMORANDUM AND ORDER ON MOTION TO DISMISS

BURROUGHS, D.J.

On September 3, 2014, PlaintiffPatricia Estabrook fell and suffered injuries while visiting the Tip O'Neill Building, a federal building owned and operated by the General Services Administration ("GSA").Thereafter, on August 31, 2016, Estabrook filed the instant lawsuit in which she asserts a negligence claim against the GSA under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),2671 et seq., based on the design of certain stairs in the atrium of the Tip O'Neill Building and the GSA's failure to warn Plaintiff of the associated danger.[ECF No. 1]("Compl.").The government moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and 12(b)(6) for failure to state a claim upon which relief can be granted.[ECF No. 14].For the reasons set forth below, the motion is GRANTED.

I.BACKGROUND

The following facts are drawn from the Complaint, its attachments, and a picture attached to the government's motion that Plaintiff does not contest the authenticity of.[ECF Nos. 1, 1-4, 15-1].¹On a motion to dismiss pursuant to Rule 12(b)(1), the Court"may consider whatever evidence has been submitted."Carroll v. United States, 661 F.3d 87, 94(1st Cir.2011)(citation omitted).Plaintiff attached several photographs to her opposition to the motion to dismiss that were apparently intended to show that the stairs at issue were hard to see, but the Court will not consider these photographs as it cannot assess the accuracy of the photographs or whether they have been enhanced in any way and because the photographs appear to be offered primarily to support a theory of liability based on the appearance of the stairs that is not asserted in the Complaint.²The Court, as it must, presumes the accuracy of Plaintiff's well-plead allegations and draws all reasonable inferences in her favor.

On September 3, 2014, Plaintiff visited the Tip O'Neill Building, which is owned, operated, managed, and maintained by the GSA, to obtain a passport.Compl.¶¶ 13, 14;[ECF No. 1-4at 1].Plaintiff fell down two stairs in the atrium.Compl.¶ 15.The stairs did not have handrails, and the atrium had no signs warning visitors about the danger of using the stairs.Compl.¶ 15.

Image materials not available for display.

The site of Plaintiff's fall in the atrium of the Tip O'Neill Building.[ECFNo. 15-1].

As a result of the fall, Plaintiff's glasses broke, and she had some bruising including a bruised nose and knees, and a headache.[ECF No. 1-4at 2-4].The day after her fall, Plaintiff saw her primary care physician, who instructed her to return if needed and to seek urgent medical attention if her condition worsened.Id.

On September 8, 2014, Plaintiff felt soreness and numbness in her cheek and went to West Wing Hospital, where a nurse practitioner examined Plaintiff and a CT scan was performed.Id.The CT scan did not reveal any acute injuries and Plaintiff was discharged.Id.

On September 17, 2014, Plaintiff saw her dentist and complained of tooth pain that began with her fall.Id.Her dentist took x-rays and performed an examination, but found that her teeth did not appear to be injured.Id.

As a result of continued swelling of her left cheek, Plaintiff saw her primary care physician again on September 24 and October 7, 2014.Id.Her physician instructed her to take Advil and apply a cool wash cloth.Id.

Plaintiff's medical expenses totaled $5,131.Compl.¶ 17.

The United States argues that this case should be dismissed because the GSA was not negligent as a matter of law, and because the Court lacks subject matter jurisdiction under the discretionary function exception to the FTCA.[ECF No. 15].Plaintiff contends that negligence is a question of fact and that the discretionary function exception should not apply because the case does not require the second-guessing of an administrative decision based on social, economic, or political policy.[ECF No. 16at 8].

II.LAW

a. Lack of Subject Matter Jurisdiction, Rule 12(b)(1)

When evaluating a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) at the pleading stage, granting such a motion "is appropriate only when the facts alleged in the complaint, taken as true, do not justify the exercise of subject matter jurisdiction."Muniz-Rivera v. United States, 326 F.3d 8, 11(1st Cir.2003)."When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor."Merlonghi v. United States, 620 F.3d 50, 54(1st Cir.2010)."In addition, the court may consider whatever evidence has been submitted, such as the depositions and exhibits submitted in this case."Aversa v. United States, 99 F.3d 1200, 1210(1st Cir.1996).While a court is limited in the extent to which it may consider evidence outside the pleading on a rule 12(b)(6) motion, attaching exhibits to a Rule 12(b)(1) motion does not convert it to a motion forsummary judgment.Gonzalez v. United States, 284 F.3d 281, 288(1st Cir.2002), as corrected (May 8, 2002).

b. Failure to State a Claim, Rule 12(b)(6)

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must also accept as true all well-pleaded facts, analyze those facts in the light most hospitable to the plaintiff's theory, and draw all reasonable inferences from those facts in favor of the plaintiff.United States ex rel. Hutcheson v. Blackstone Medical, Inc., 647 F.3d 377, 383(1st Cir.2011).Although detailed factual allegations are not required, a pleading must set forth "more than labels and conclusions."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555(2007).A "formulaic recitation of the elements of a cause of action" is not enough.Id.To avoid dismissal, a complaint must set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory."Gagliardi v. Sullivan, 513 F.3d 301, 305(1st Cir.2008)(internal quotations and citation omitted).Further, the facts alleged, when taken together, must be sufficient to "state a claim to relief that is plausible on its face."A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80(1st Cir.2013)(quotingTwombly, 550 U.S. at 570).

The First Circuit has noted that "[t]he plausibility standard invites a two-step pavane."Id."At the first step, the court'must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'"Id.(quotingMorales-Cruz v. Univ. of P.R., 676 F.3d 220, 224(1st Cir.2012))."At the second step, the court must determine whether the remaining factual content allows a reasonable inference that the defendant is liable for the misconduct alleged."Id.(internal quotations and citation omitted)."The make-or-break standard . . . is that the combined allegations, taken as true, muststate a plausible, not a merely conceivable, case for relief."Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29(1st Cir.2010)."Although evaluating the plausibility of a legal claim requires the reviewing court to draw on its judicial experience and common sense, the court may not disregard properly pled factual allegations, even if it strikes a savvy judge that actual proof of those facts is improbable."Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12(1st Cir.2011)(internal quotations and citations omitted).

c. Discretionary Function Exception to the FTCA

"The United States as a sovereign can be haled into court only if it consents to be sued."Merlonghi v. United States, 620 F.3d 50, 54(1st Cir.2010)."To expose the United States to suit, Congress must unequivocally waive sovereign immunity."Id.(punctuation omitted)(quotingUnited States v. Mitchell, 445 U.S. 535, 538(1980)).The FTCA allows "civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."28 U.S.C. § 1346(b)(1).In allowing such claims, the Act"provides a carefully limited waiver of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents."Carroll v. United States, 661 F.3d 87, 93(1st Cir.2011).Absent the waiver of sovereign immunity provided by the FTCA, "the federal courts lack subject matter jurisdiction over torts against the United States."Wood v. United States, 290 F.3d 29, 35(1st Cir.2002).

Congress has specified several exceptions to the FTCA's waiver of sovereign immunity, including the discretionary function exemption.28 U.S.C. § 2680.The discretionary function exception eliminates district courts' jurisdiction to hear FTCA claims"based upon the exerciseor performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government[.]"28 U.S.C. § 2680(a).With this exception, "Congress intended 'to protect the government from liability that would seriously handicap efficient government operations.'"Wood, 290 F.3d at 36(quotingUnited States v. Muniz, 374 U.S. 150, 163(1963)).Where the exception applies, courts lack subject matter jurisdiction and the Government retains its immunity "whether or not the discretion involved [was] abused."28 U.S.C. § 2680(a).

A two-part analysis determines whether conduct falls within the discretionary function exception.Berkovitz v. United States, 486 U.S. 531, 536-37(1988).First, c...